Ellsberg Affidavit 1
May 20, 1987
For the case of:
State of Florida vs. John Doe, No. 10, AKA Michael Fowler
and John Doe #13, AKA Scott Yoos
In the County Court in and for Brevard County, Florida
Case Nos. 87-363-MM-A and 87-365-MM-A
Daniel Ellsberg, being duly sworn, deposes and says:
' '■'’ressis , _ , )ne
nurr. I was educated at Harvard University, where I received a B.A., summa
cum laude, in 1952 and a Ph.D. in Economics in 1962. In 1953-53 I was awarded a Woodrow
Wilson Fellowship for study at King's College, Cambridge University, and in 1957-591 was a
member of the Society of Fellows, Harvard University. From 1954-57 I was an infantry officer in
the U.S. Marine Corps.
My relevant background falls into several categories.
(a) I have spent a dozen years as a government official, researcher or consultant in the area
of national security, working on nuclear war planning, the command and control of nuclear
weapons, and Vietnam policy. For nine years I worked on those matters as a researcher for the
Rand Corporation, Santa Monica, California, on contract for the U.S. Air Force and the Office of
Secretary of Defense, and also as a direct consultant to the Office of Secretary of Defense, the State
Department and the White House. In 19611 drafted, as a consultant to the Secretary of Defense, the
Kennedy Administration guidelines (Top Secret) for the operational war plans for general nuclear
In 1964-65 I was Special Assistant to the Assistant Secretary of Defense for International
Security Affairs, with the "super-grade" GS-18: highest level in the Civil Service, the civilian
equivalent to major general. In 1965-67, having volunteered for service in Vietnam, I served in the
Embassy in Saigon with the grade of FSR-1, as Senior Liaison Officer, and as Special Assistant to
the Deputy Ambassador with the duty of evaluating pacification.
In 1967-69,1 was a member—as a consultant to OSD from the Rand Corporation, to which I
had returned—of a McNamara Task Force which produced a 47-volume Top Secret study entitled
"History of U.S. Decision-making in Vietnam 1945-68," later known as the Pentagon Papers. In
late 1968 and early 19691 was a consultant to the Special Assistant to the President for National
Security Affairs, Henry Kissinger, on Vietnam options and initial governmental studies on
b) In 1969-70, as an employee of the Rand Corporation, I copied the entire McNamara
Study—which was in my authorized possession, since I had been given virtually exclusive access to
Ellsberg Affidavit 2
it as a researcher—and gave it to the Chairman of the Senate Foreign Relations Committee, Senator
Fulbright, in the expectation that it would be the basis for official hearings. In 1971, the hearings
having been postponed several times and never held—and U.S. invasions of Cambodia and Laos
having occurred in the interim—I gave a copy of the Study (except for four volumes on negotiations)
to the New York Times. When the Times was subjected to an unprecedented injunction against
printing excerpts from the study, I gave a copy to the Washington Post, and subsequently, in the
face of several more injunctions, to more than a dozen other newspapers.
The Supreme Court soon voided the injunctions, but I was indicted, eventually on twelve
federal felony counts for alleged violations of the espionage act (I was not charged with espionage,
nor with any count alleging intent to harm the interests of the United States or to help a foreign
power), theft and conspiracy. In 1973 all charges were dismissed with prejudice (meaning, they
could not be brought against me again) on the federal judge's finding of a pattern of governmental
misconduct against me, referring to actions that led to the indictment and conviction of a number of
White House employees and which figured in the impeachment proceedings against President
c) Since 1973 my work has been public education, as a lecturer, writer, and political activist,
primarily addressed to the risks of the nuclear arms race and of U.S. interventions abroad, as
recently in Nicaragua. I have given college courses and seminars on these subjects-at Stanford, the
Harvard Medical School and University of California at Irvine—and hundreds of lectures on college
I have also acted politically to reduce these risks, both in electoral campaigns, in
Congressional lobbying, and as a speaker in many demonstrations. And as what I judge to be an
essential complement to these activities, I have participated in several dozen actions of non-violent
civil disobedience, or direct action. In many cases resulting from these activities I have raised the
defense of "necessity," or "avoidance of harm," the legal elements of which argument—as I
understand them from my study of the legal literature on this subject—express perfectly my
motivations in undertaking the actions in question: which appear to correspond closely to the action
and intentions at issue in this case.
I have also been called as an expert witness repeatedly in both state and federal court cases
to testify on the subjects of the risks arising from the nuclear arms race or from U.S. military
interventions, on the effects of secrecy on U.S. decision making and on the democratic process, and
on certain elements of the justification defense as raised by other defendants, in particular the
potential impact of actions of civil disobedience. Most recently, I was an expert witness in the
Massachusetts trial Commonwealth v. Amy Carter et al, April, 1987, which resulted in acquittal of
all defendants who had occupied a University of Massachusetts building in protest of CIA recruiting
on campus, after the jury had heard expert testimony—including mine— and the judge’s instructions
on the justification defense.
I have studied the history of civil disobedience extensively and have lectured and written on
the subject (see my Introduction to Joseph Daniels' A Year of Disobedience). But my primary
knowledge of the subject is more direct. It is based not only on my own participation in actions like
these, but on the experience that led up to that. I can testify, almost uniquely, from the perspective
Ellsberg Affidavit 3
of a government researcher and consultant, a former government official, who felt the impact of
such actions by others upon my own awareness and conscience, and who responded to their
example by undertaking myself what I conceived to be a necessary act of non-violent, truth-telling
civil disobedience, breaking secrecy regulations which 1—mistakenly-believed to be grounded in
Furthermore, there is strong basis for the widely-held belief that my own action—crucially
influenced by actions comparable to those on trial in this case—had a tangible effect, as 1 intended
and hoped, on the ability of the American public. Congress and courts, to end both the deaths and
the deceptions associated with U.S. involvement in the Vietnam war.
In the words of one law review article, "Daniel Ellsberg's releasing of the Pentagon Papers
arguably, at least, had a significant effect on the war."' The context of this statement is precisely the
subject of my deposition here. The authors discuss the case of Brother John Simpson,^ who
destroyed draft files on Christmas Eve, 1970, "in an effort to impede the war in Southeast Asia," and
who was barred by his trial judge from introducing evidence "that his actions were done to avert
greater evil in the war zone" as part of a defense of necessity.
"The Court of Appeals for the Ninth Circuit, citing the A.L.I. Model Penal Code, recognized
in Simpson the 'theoretical basis of the justification defense... that in many instances, society
benefits when one acts to prevent another from intentionally or negligently causing injury to
people or property.' The court said, however, that an essential element of the defense is a reasonable
anticipation of a direct causal relationship between the otherwise criminal act and the avoidance of
harm. The court concluded that it was unreasonable for Simpson to assume his actions might have
a significant effect on the evil he wished to prevent because the war would obviously continue
whether or not the San Jose draft board continued to function."^
In a footnote to the last sentence above, the authors comment: "Presumably Simpson offered
to prove it was reasonable for him to believe these actions would have a significant effect. The court
of appeals may have concluded from the record that no reasonable jury could make such a finding.
But it is hardly clear that when respected persons in the community destroy records to protest a war
these actions have no significant effect on the war policy of a country. Daniel Ellsberg's release of
the Pentagon Papers arguably, at least had a significant effect on the war."^
I did not, of course, destroy records; I released records, of American history that had been
wrongfully withheld from the American Congress, courts and public. And the secrecy rules I broke
turned out to be administrative regulations of the Executive branch—the sole basis for the
classification system, which has no legislative foundation—rather than laws. But I believed what I
had often been told, that these rules reflected laws passed by Congress-I was, indeed, prosecuted,
though the prosecution was without any legal precedent in the case of such actions-and I also
believed that my action was fully justified, virtually obligatory, for reasons all within the
framework of the necessity defense.
But in citing my action as an example of a "direct action" that arguably had direct impact in
reducing or ending a great evil—thus supporting the reasonableness of a belief by Simpson that his
own action might have done likewise—the authors were apparently unaware of an aspect of my
Ellsberg Affidavit 4
experience that was equally relevant to their argument. For as I have repeatedly written, and
testified under oath, I would not even have thought of doing what I did, nor been inspired to
undertake its risks or the effort required, without the direct example in my mind of actions by others
of the exact nature of Simpson's.
It was the specific example of Randal Kehler, whom I met in August 1969 as he prepared to
go to prison for two years for refusing to cooperate with his draft board, that put in my head the
question: "What can I do to help end this war, if I’m willing to go to jail for it?" And that question
found its answer within weeks, at which point I began to copy the documentary evidence in my safe
of governmental deception and law-breaking. I decided to demonstrate the truth about the war to
Congress and the public, though I expected to spend the rest of my life in prison for doing it.
Only a person speaking from Kehler's position, on his way to prison for choosing to
confront a governmental evil as powerfully as he could, could have been heard by me so
consequentially. What I heard was a challenge to action that Kehler had hoped someone would
hear. My reaction was precisely what most people undertaking such a course hope and intend to
help inspire. I learned then the power of committed, risk-taking, conscientious, non-violent direct
action, because I felt its power on my own life. It is a lesson, and an effect, that I seek to pass on
when I take part in such actions. I do them, and accept the costs that sometimes follow for me,
because I know they can work. They worked on me.
Of course, the question in others' minds that one seeks to convey by non-violent direct
action that risks arrest is not, usually, "Should I be willing to go to jail?" but, "Should I be willing
to take some personal risk?" Most actions that individuals in Congress, the media or the public can
take to protect others from harm by wrongful, dangerous governmental practices are perfectly
legal; indeed, what officials may be most challenged to do is to begin obeying important laws or
the Constitution, to cease participating in violations and illegal deceptions ordered by their
Yet to oppose an official policy, pursued with Presidential authority, no matter how
abusive or illegitimate it may be, always involves some degree of risk: risk to job or career, to
reputation, to relationships. In such cases, living up to the ideals of one's profession and
responsibilities as a democratic citizen requires some courage. Courage is contagious; it benefits
from examples, like Kehler’s to me.
Nor was Kehler's example the only one to have a direct role in the causal chain that led to
the publication of the Pentagon Papers. After more than a year had passed since I had first turned
over the study to the Fulbright Committee, no hearings had been held, the President was clearly
more committed to continuing the war than before, and the antiwar movement, despairing after the
failure of protests following the invasion of Cambodia and the killings at Kent State, had subsided
almost to insignificance. For me to move beyond my efforts to stimulate Congressional hearings to
seek direct publication in newspapers seemed to offer very little prospect of affecting the political
process while increasing my personal risks enormously.
It was at this point in early 1971 that I was asked to be an expert witness, as a former
government official, in the trial of the "Minnesota Eight," college students and seminarians who
Ellsberg Affidavit 5
had destroyed draft files just as Brother John Simpson did on Christmas Eve, 1970. I took copies
of the Pentagon Papers with me to Minneapolis hoping to present them as documentary evidence to
support my testimony that the government had been manipulating the democratic process—and
concealing its own law-breaking—by lying to the public, a situation that called for dramatic
challenge of the sort the defendants had done.
But the Pentagon Papers did not get into the public record on that occasion. The federal
judge refused to allow my testimony on this particular point, when he heard me use the word "lie"
about a Presidential statement. He had earlier warned the defense attorney that he would not
entertain expert testimony "critical of the federal government." He warned the attorney that he
would hold both him and his witness in contempt of court if there any further such allegations.
It was precisely this sort of consciousness—that it was unthinkable and certainly unsayable
that presidents might lie to the American public—that seemed to me to need changing if our
democratic system were to end the Vietnam tragedy, and 1 saw nothing other than the Pentagon
Papers that might do the job. But that meant that 1 had to be willing to take measures that would
sharply increase the risk of spending the rest of my life in jail. That willingness, at that point, was
crucially renewed and strengthened in me by the example of the defendants I met and heard that
day in court, in particular the seminarian and lay theologian Francis Kroncke. The immediate and
direct effect of their testimony was to cause me to reexamine what more I could do to inform the
public—at greater personal risk if necessary—and to decide to seek newspaper publication.
Two years later, sitting in court at my own trial, 1 heard my defense lawyer refer to the
appellate case United States v. Kroncke.^ Listening to him, I learned that the trial court's rejection
of Kroncke's necessity defense had been upheld by the 8th Circuit on the grounds that he had failed
to demonstrate a reasonable basis for inferring a direct causal chain between his action and the
shortening of the war.
My lawyer's point was that my case was different from Kroncke's; it was clear that flie
publication of the Pentagon Papers had already played a significant role in creating the climate of
public awareness and Congressional pressure that had led the Administration, reluctantly, to
negotiate the withdrawal of U.S. combat troops from Vietnam.
But knowing—as my lawyer did not, and the 8th Circuit Appellate Court did not—the effect
of Kroncke's actions and defense on my own decisions, 1 could recognize that exactly the same
argument applied to his case as well. At the defense table 1 wrote a note to myself: "I am a link in
Frank Kroncke's causal chain."
The chain of effects was not yet ended. The disclosures that ended my trial on May 11,
1973—daily revelations for two weeks of a whole series of criminal actions that the Administration
had taken against me to stop further truth-telling about government policy by me or others—further
strengthened Congressional determination to cut off spending on American weapons and bombs
that were still killing Vietnamese, even though U.S. casualties had ceased. (The first House
majority vote to suspend funding on the war, for bombing of Cambodia, came on May 10, the day
before my trial was finally dismissed).
Ellsberg Affidavit 6
Moreover, these same revelations of Nixon’s domestic crimes against me played a major
part in subsequent impeachment proceedings that led to his resignation: the departure of a Chief
Executive who, unlike his replacement Gerald Ford, might well have defied the Congressional
restrictions on spending in face of the upsurge of fighting in Vietnam in 1975, prolonging the war
and U.S. involvement in it indefinitely. In other words, Nixon’s unprecedented removal from
office was essential—like the unprecedented cutoff of Congressional funding— to the ending of the
Thus, the copying, and much later the publication of the Pentagon Papers can reasonably
be held to have contributed, first, to the ending of U.S. casualties in Vietnam, and subsequently to
the ending of the war. Both of these effects depended largely on the illegal over-reaction of the
Administration to my actions, in fear of the political consequences of better public information on a
policy that was still being conducted largely in secret to hide its illegal, reckless and
I present these judgments here not to glorify the impact of my decisions. Indeed, for the
many Americans who believe, unlike myself, that a different course of events, prolonging the war
or perhaps escalating it, would have been better for our country and for Vietnam, similar
inferences entitle them to hold me partially accountable—along with the movement of which I was
part—for results they deeply deplore.
The point here is simply that I agree with these critics of the antiwar movement on the
reasonable inference of a chain of causality. And if a causal chain-not, to be sure, determinate, if
such a thing exists in political life, but probabilistic—extends from my actions between 1969 and
1973 to the avoidance of further harm to Americans and Vietnamese from American policy, then
the actions of Kehler and Kroncke and many others, like Simpson, were earlier links in that same
As it happens, my own defense in the Pentagon Papers case did not rest on necessity. By
the time of trial, it was clear from legal research—contrary to my own understanding in 1969—that
by no prior interpretation of law had I broken any statutes by any of my actions. I had not, in terms
of legal precedent, committed an action of civil disobedience, though I had certainly been willing
to do so.
However, had the law been otherwise (and a recent decision in U.S. v. Morrison is the first
contrary precedent) and other circumstances the same, I believe the same actions would have been
justified by an argument of necessity. And the same would be true for Kroncke, Kehler, Simpson,
Cullen^ and many other cases in which courts—mistakenly, in my opinion—denied defendants a
necessity defense or the presentation of evidence bearing on it.
As I see it, the judges in these cases erred because they were, like most people, unaware of
facts of personal experience, of the sort I have reported here, that have empirically linked actions
commonly perceived as "symbolic acts of conscience" to other actions more easily recognized as
socially or politically efficacious. It is true that many actions of the sort discussed here both express
and speak directly to moral considerations and to conscience, in a way that other sorts of
Ellsberg Affidavit 7
actions—which do not involve the risk of jail or other burdens—do not. But I have referred in this
deposition to considerations of conscience not as superseding considerations of law but as relevant
to the law's demand for reasonable expectations of causality.
Effects on conscience and other aspects of consciousness can and do have causal effect on
actions and events, on political behavior within a democratic process that has frequently been found
to require, for its proper functioning, just such conscientious action by individual citizens. To a
degree and for reasons that many judges seem not to have appreciated, symbolic acts that risk trial
and imprisonment are often chosen—and properly so—for their unique and essential efficacy.
Civil disobedience is regarded by some as antithetical to democratic procedure. But our
actual political process in America frequently falls short of ideal postulates of democracy. In the
Cold War era, officials have often been permitted to pursue certain conceptions of national interest,
or sometimes personal or party interest, behind a cloak of secrecy "for national security" that
tempted them to ignore the constraints of international or domestic law or the Constitution, in ways
that proved as reckless as they were illegal. In the case of the Vietnam War, massive campaigns of
public resistance, leading to many indictments and court trials including my own, proved essential
to compel government officials to observe the law, along with the public will.
As I write this, daily hearing on the Iran/Contra scandal demonstrate the prolonged existence
of a secret supply effort supporting the contras directed from the White House, in clear violation of
the spirit—as even Administration sources admit—and even the letter—as seen from the Hill-of
Congressional legislation over the last two years forbidding any such involvement or use of funds.
Congressional statutes and the Constitutional requirements of our democratic system have
not, in fact, been observed in the making or implementing of Executive policy toward Nicaragua.
Nor have the requirements of international law and our treaty obligations, as found recently by the
International Court of Justice. Nor the demands of prudence, in averting an impending catastrophe,
measured in terms of our experience in Vietnam.
To my knowledge, in the domain of nuclear weapons policy, there has been throughout
the nuclear era an equally great divergence between public desires and beliefs, public declarations
of official policy, and the demands of law and prudence, on the one hand, and actual, secret
governmental policy and practice on the other: with a potential for catastrophe incomparably
In neither of these areas have the "normal," legal processes of democracy functioned
adequately—or even been permitted to operate, in terms of openness and public awareness-to
protect American citizens and other humans from vast, in some cases unprecedented and unlimited
risks of harm. Will any of these risks—to our democracy and our legal system as well as to human
lives—^be terminated or averted without such actions, to awaken the consciences of democratic
citizens, as are on trial in this case?
In other contexts, then-existing laws have expressed anachronistic racial or gender or class
prejudices in ways that violated the fundamental spirit of the Constitution and Bill of Rights and no
longer reflected an evolving public sense of justice. Yet American history reveals that it was not
Ellsberg Affidavit 8
until widespread campaigns of civil disobedience, affecting public awareness and conscience—for
example, relating to women's right to vote, civil rights, and the right to unionize-that the electoral
and legislative and legal processes began to function to extend and protect these rights in a way we
now take for granted as fundamental to democracy. The non-violent actions that were crucial to the
extension of real voting rights to women and blacks were as much a part of the democratic process
as the subsequent voting.
One of the sources of my own education on these matters has been the testimony by
defendants and expert witnesses in trials in which I have been a participant. A notable instance was
the testimony of the former Attorney General of the United States, Ramsay Clark, in a trial in
Beatty, Nevada, in which I was a defendant for obstructing the entrance to the Nuclear Test Site.
Speaking to the same issue I have addressed here—the actual causal effects of civil disobedience as
shown by past experience—he testified on its effects on policymaking during his own time in
Clark told the judge that in March of 1965,1% of blacks in the state of Alabama were
registered to vote. That was the month in which blacks held a march from Selma to Montgomery,
in which hundreds of participants were arrested and Violet Liuzzo was killed. Clark, as Attorney
General, was ordered to go to Selma to take charge of the National Guard, called out to protect a
later march in which Martin Luther King participated. By the end of that later march, he said, 2%
of blacks were registered—"not very many, but a 100% increase in the course of the month."
Testifying under oath as an expert witness, the former Attorney General stated:
"Without the marches"—which, in Alabama at that time, were treated as civil
disobedience—"the Voting Rights Act of 1965 would never have passed."
In my understanding as both a student of and participant in such campaigns, in none of
these cases is the public movement, and specifically the tactic of civil disobedience, properly to be
seen as an "alternative" to, or a substitute for, the more traditional and unarguably legal processes of
our politieal system: but as a sometimes necessary complement to such processes, stimulating and
reinforcing them in a way that is not infrequently essential to achieving urgent, legitimate public
In my own experience, participants in civil disobedience virtually never conceive of these
particular actions as the sole effective means, by themselves, of averting specific harms, or as
sufficient in themselves to do so. The issue, from the perspective of these actors, is not whether
other approaehes, unchallengeably legal, exist to further their aims, but whether these
unquestionably necessary approaches, by themselves and excluding dramatic campaigns of civil
disobedience, are adequately effective, whether they can "work" or work in time to avoid great
harm without the historically-proven catalyst of committed, conscientious, risk-taking exemplary
These considerations bear on two other elements of the necessity defense, the "laek of legal
alternatives" and the "imminence" of the harms to be averted. Again, I speak from my own
Ellsberg Affidavit 9
experience, but not only mine, in saying that it is the perceived insufficiency of other means, by
themselves—not their unavailability or irrelevance—that impels one to add, in some circumstances,
tactics that risk arrest to a program of social action. And the urgency of such means reflects the
prolonged time required to mobilize political efforts—perhaps measured in months or years—to
avert deaths and injuries that will not be averted at all without campaigns that include these
What such actions can realistically be hoped to achieve may be best illustrated by an action
in which 1 participated on April 8, 1986, when half a dozen citizens intruded onto the Nevada Test
Site, attempting to obstruct a scheduled nuclear test explosion by putting our bodies as close to
Ground Zero as possible. We were arrested within four miles of Ground Zero; the test was, in fact,
delayed that day, and delayed again the next day when another team likewise penetrated.
We had been authoritatively warned, and believed, that we would be charged with a federal
violation of the Atomic Energy Act and could expect a sentence of at least nine months in jail.
None of us took this lightly. But this test ("Mighty Oak") was the one—the first U.S. test after
March 31,1986, the expiration date then set for the unilateral Soviet moratorium on Soviet nuclear
testing—which threatened to have the effect of causing the Soviets to resume testing, after an
eight-month suspension which the Soviets had promised to continue indefinitely if joined by the
Each of us was willing to make a considerable personal sacrifice to protest and delay this
particular test. In the early morning of April 8, the risks to our country and the world associated
with resumption of a two-sided, unrestricted nuclear arms race could not have seemed more
As it worked out, the test was conducted, two days later. Nevertheless, because the
Chernobyl disaster occurred just two weeks later, the Soviet Union chose to extend their
moratorium again. Lesser penalties than had been predicted were offered us in lieu of trial; we later
learned that this was because the government did not wish the fact to emerge in a trial that the test
had resulted in significant venting of radioactivity, so we regretted that we had paid the large fines
rather than accept the prospect of long prison sentences. But this was a rare occasion on which
there was immediate evidence that our message had been heard on Capitol Hill, with direct effect on
the legislative process.
On the evening of our arrest, soon after 1 was released from custody, 1 was told by
[Christopher Paine] a key legislative aide to Representative Markey, phoning from Washington,
"You've got to keep those actions going! This one has galvanized the Hill: specifically, the people
on our side."
He named several Congresspersons who had already been the most active in pressing for
the U.S. to join the Soviet moratorium and to negotiate a Comprehensive Test Ban. "You've moved
this issue onto the agenda; it's been on the back burner up till this. Now our supporters are asking
themselves, 'If there are people out there that care this much, if they're willing to take a risk of
radioactivity and prison: Are we doing as much as we should?"
Ellsberg Affidavit 10
"As a direct result they've decided today to move the Schroeder Bill [calling for a cutoff of
funding for U.S. nuclear testing so long as the Soviets were not testing]—which will never get out of
House Armed Services as a bill—out onto the floor for a vote, as an amendment. But you've got to
keep the pressure up, to keep attention on this issue. You've got to delay this test as long as you
"Do you know what you're asking? We're expecting nine months in prison for this," 1 told
him. "1 don't know how many people we can find who are willing to do that." 1 didn't know that as 1
spoke, another group was moving onto the site: with many to follow.
Four months later, the House voted for the first time on an amendment to cut off all funds
for testing nuclear weapons over one kiloton so long as the Soviets did not test. It passed by a large
majority. Had it survived the House-Senate Conference and a possible Presidential veto,
U.S.-Soviet nuclear testing, a major part of the arms race, would have been over, perhaps forever.
But on the eve of the hastily-scheduled Iceland Summit, the House responded to White House
pleas to defer this challenge to Presidential policy, and withdrew the measure from Conference. It
was passed again by the House this spring and a Senate vote on a comparable amendment
sponsored by Senators Hatfield and Kennedy is now expected.
According to this same aide—who played a key role in drafting and coordinating both the
House and Senate versions of the amendment—this year may well see the
Congressionally-mandated ending of most nuclear testing, on the basis of a mutual U.S.-Soviet
moratorium. It would mean the ending of a major part of the nuclear arms race in much the same
way—via protest, lobbying and Congressional budgetary action—that the Vietnam War was ended:
perhaps the only way that either could be ended.
“Once the process of seeking co-sponsors was underway,” he told me in retrospect, early
this year, grassroots lobbying turned out to play relatively little role; it was, as he saw it, an
"internal Congressional process" that moved the measure ultimately to a successful House vote last
But without the dramatic example of the Ground Zero actions in April, he judged, "the
process would never have gotten started." Its supporters in Congress would not have taken the
initiative to move it onto the floor; they would not have taken the risks of an embarrassing failure,
the risks of opposing the President.
It is for that causal impact on matters of the gravest urgency and human consequence that
people put their bodies in the way of tests of first-strike weapons at Cape Canaveral and
Vandenberg and Nevada, risk arrest and sometimes go to prison. Or sometimes, when the jury
hears the evidence, are acquitted.
Ellsberg Affidavit 11
' Edward B. Arnolds and Norman F. Garland, "The Defense of Necessity in Criminal Law: The
Right to Choose the Lesser Evil," Journal of Criminal Law and Criminology, Northwestern
University School of Law, Vol. 65, No. 3, p. 300.
^ United States v. Simpson, 460 F.2d 515 (9th Cir. 1972).
* Ibid., n. 127. In another footnote to the same sentence, the authors comment on the court's
conclusion that the war would obviously continue regardless of Simpson's action: "Arguably,
however, the appellant could have saved lives and property by merely impeding the war, or
shortening it, without ending it."
^ 459 F.2d 697 (8th Cir. 1972). Cited in Lawrence P. Tiffany and Carl A. Anderson, "Legislating
the Necessity Defense in Criminal Law," Denver Law Journal, Vol. 52, 1975, p. 844-45, n. 21.
Footnote 20 in this article discusses Simpson.
^ United States v. Cullen, 454 F.2d 386 (7th Cir. 1971), discussed in Tiffany and Anderson, p. 844,
n. 21. The defendant Cullen was another seminarian who had a significant influence on my own
course of thinking and behavior.
’ See Tiffany and Anderson, p. 846:
In Aldrich v. Wright the court observed: "The term 'imminent' does not
describe the proximity of the danger by any rule of mechanical measurement... The
law does not fix the distance of time between the justifiable defense and the
mischief, for all cases, by the clock or the calendar. The chronological part of the
doctrine of defense, like the rest of it, is a matter of reasonableness; and
reasonableness depends on circumstances."
The strongest recognition of this view is found in the commentary to the
Missouri Proposed Code which, being patterned after New York's, includes the
"[I]t must be remembered that what constitutes 'emergency measure' and
'imminent' does not depend solely on the interval of time before the injury sought to
be prevented will occur. Additional circumstances of the particular fact situation
must also be evaluated. Thus, if under the circumstances, the mere passage of time
is such that a reasonable man would perceive no viable alternatives to his present
course of conduct the fact that the injury sought to be prevented will not take place
for some time hence, e.g., six hours, will not prevent the use of the defense of
justification under this section, provided it is otherwise available."
Ellsberg Affidavit 12
In the case of the Vietnam War, Americans and Vietnamese were dying every day. But it
was six years, not six hours, from the time I copied the Pentagon Papers in 1969 before the war
financed by American taxpayers was ended; and it was never clear to me that it could have been
stopped much sooner, realistically, nor that without the risks and trials accepted by many
Americans, including myself, it could have been stopped at all.